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The US Senate and the Armenian genocide

Armenians visit the genocide memorial, which commemorates the 1915 mass killing of Armenians by the Ottomans in Yerevan [AFP]

On April 11, by a vote of 12-5 with one abstention, the US Senate Foreign Relations Committee gave its approval to Resolution 410 that calls upon Turkey to acknowledge that the massacres of Armenians in 1915 constituted "genocide". It calls upon President Barack Obama to adjust US foreign policy by advocating an "equitable, constructive, stable and durable Armenian-Turkish relationship including full acknowledgement of 'the Armenian genocide'".

Backers of such resolutions, although only recommendatory, claim to generate pressure to apologise for historical wrongdoing and deter the future recurrence of such crimes. In this case the resolution died after its issuance as it was not put on the agenda of the full Senate before its Easter recess and since it was timed to commemorate the events of 1915 on April 24, it will not be considered further.

Turkish Prime Minister Recip Tayyip Erdogan did issue a statement of regret about Armenian suffering in the course of the events of 1915, but stopped well short of either an apology or an acknowledgement of 'genocide', which is the basic demand of the Armenian community.

The Turkish foreign minister has already indicated his displeasure with such initiatives, insisting that respected historians should investigate the claim of genocide, that it is not appropriate for third countries to meddle in such matters, and that such an initiative will have a negative influence on the search for some kind of just resolution of these persisting tensions. Turkish Prime Minister Recip Tayyip Erdogan did issue a statement of regret about Armenian suffering in the course of the events of 1915, but stopped well short of either an apology or an acknowledgement of "genocide", which is the basic demand of the Armenian community.

The Turkish narrative, which has softened its claims during the past decade as embodied in Erdogan's statement issued to coincide with the 99th commemoration of 1915, argues that there were atrocities on both sides, with a considerable number of Turkish casualties. Further, that the massacres were less expressions of ethnic hatred than exhibiting a reliance on excessive and undisciplined force to suppress an Armenian revolt against Ottoman rule at a time when Armenians were siding with invading Russian armies in the midst of World War I. The Armenians dismissed Erdogan's statement, calling it "denialist" and "the usual euphemisms".

What is at stake

There are two important, intertwined inquiries present. First, the whole issue of inter-temporal justice: How to address events that took place 100 years ago in a manner that is as fair as possible to the victims yet realises that the passage of time must be taken into account in assessing responsibility for past events. Secondly, the degree to which such an issue should be resolved by the parties themselves, or within the framework of the United Nations, rather than become intertwined with the domestic politics of third countries whose governments are swayed by the presence of aggrieved minorities.

My impression is that the current leadership in Turkey is not seriously committed to upholding the Turkish narrative, but neither is it willing to subscribe to the Armenian narrative in some of its aspects, including a likely apprehension of "the Pandora's Box" aspects of such a process, which could easily extend its reach to such delicate questions as reparations and reclaimed property. Especially in recent months, the Turkish political scene has been rather chaotic, and undoubtedly there is at present a reluctance in Ankara to stir the hot embers of the Turkish nationalist political culture at this time.

What is 'genocide'?

Is there a single historical truth that must be affirmed by all those of good will, and is it what the Armenian movement and US Senate resolution contends? Is Turkey expected to subscribe to such an Armenian narrative if it wants to overcome the possible agenda of those demanding redress?

... Historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey, and although occurring in the midst of war and national upheaval, the violence was so one-sided as to undermine the credibility of the Turkish narrative.

I think the historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey, and although occurring in the midst of war and national upheaval, the violence was so one-sided as to undermine the credibility of the Turkish narrative. This historical truth, however, is far more equivocal in relation to the contention that these genocidal events constitute the crime of genocide as embodied in the 1948 Genocide Convention, which came into force in 1951.

Criminal law is not retroactive. Even the Nuremberg judgement, which allowed such innovations as "crimes against the peace" and "crimes against humanity" avoided any attempt to hold the Nazi leaders being prosecuted responsible for genocide despite the magnitude and unambiguous occurrence of the Holocaust. What exactly is the crime of "genocide"? Can it be said to pre-exist Nuremberg, given the wording of the Convention, but if so, why was it ignored in the prosecution of these Nazis? Article 1 of the Genocide Convention states: "The contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." The use of "confirm" in Article 1 lends itself to the view that the crime preexisted the use of the word genocide. Yet the word genocide was unknown until invented in 1944 by Raphael Lemkin.

Ambiguity is present when the idea is to induce Turkey to admit that the massacres of 1915 qualify as the crime of genocide, and as such, have legal implications. More flexible, by far, would be a process of inquiry by an international commission of independent experts that might conclude that the events in question were "genocidal" and that if committed in the last 65 years would constitute "genocide". The World Court in responding to the Bosnia complaint alleging Serbian genocide concluded that a high evidentiary bar exists to establish the crime even in the aftermath of the Convention, but it did find that the 1995 massacre in Srebrenica was "genocide". Beneath the ambiguity are some significant substantive implications. If there is a non-legal admission of genocide, then no legal consequences follow, but if the crime is accepted as pre-existing and applicable to the events of 1915, then claims of reparations and pertaining to lost property are legally grounded.

Is US government involvement constructive?

The question of whether the US should be involved is less significant but far from trivial. The questionable political opportunism that connects the responsiveness of Congress to a well-organised Armenian lobby does seem to support the official Turkish response that it is never helpful for a foreign country to take the anti-government side in a controversy of this sort. It is bound to harm bilateral relations between the two countries. In effect, the mutual respect for sovereignty requires governments to refrain from such meddling. One can easily imagine the furore in the US if the Turkish Parliament passed a resolution insisting that Washington acknowledge that native Americans were victims of genocide or that descendants of slaves should receive reparations.

From the Armenian perspective seeking redress, is this show of US governmental support helpful or not? I suspect that a different tact would produce less defensiveness on the Turkish side, and more willingness to seek a mutually satisfactory outcome. The second concern is how to address the genocide issue given the passage of time, and the interplay of concerns on both sides. My preference would be for both Turkish and Armenian representative to agree upon the use of the word genocide, but with the understanding that the use of the word in relation to the massacres of Armenians is without legal effect. This inherent ambiguity of genocide, which is at once an empirical term about a set of events, a political, psychological and ethical evaluation of those events, and a legal conclusion that the events constituted the crime, including sustaining the heavy burden of proof as to criminal intent.

What does not help, it would seem, is posturing by the US Congress. It will necessitate fence-mending by the Obama presidency to maintain good Turkish-American relations, a high regional priority. At the same time, the Turkish government should do more than angrily push aside this American initiative, and show a more forthcoming attitude towards finding some common ground to heal Armenian wounds that remain open after a century. For many years the influential Turkish lobby in Washington has shielded Turkey from criticism by treating the Armenian issue as a "third rail" which when touched shocks Turkish sensibilities.

The Turkish proposal of a joint Armenian, Turkish and international historians, with full access to Turkish archives, will not be able to complete the work of reconciliation. With the 100th anniversary of these terrible events coming in 2014, the moment is ripe for Turkish soul-searching and for an Armenian willingness to seek acknowledgement of their basic claim.

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies.He is also the United Nations Special Rapporteur on Palestinian human rights.

SOURCE: Al Jazeera

ABOUT THE AUTHOR

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies. He is also former UN Special Rapporteur on Palestinian human rights.